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2006

When "Victory" Masks Retreat: The LSAT,Constitutional Dualism, and the End of DiversityD. Marvin JonesUniversity of Miami School of Law, djones@law.miami.edu

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Recommended CitationD. Marvin Jones, When "Victory" Masks Retreat: The LSAT, Constitutional Dualism, and the End of Diversity, 80 St. John's L. Rev. 15(2006).

THE RONALD H. BROWN CENTER FOR CIVIL RIGHTS AND

ECONOMIC DEVELOPMENT

SYMPOSIUM

WHEN "VICTORY" MASKS RETREAT: THELSAT, CONSTITUTIONAL DUALISM, AND

THE END OF DIVERSITY

D. MARVIN JONESt

INTRODUCTION

In 1839, Africans aboard the Amistad killed most of theircaptors and forced a surviving Spanish sailor to sail them towardtheir home. The Spanish sailor did indeed sail for Africa-duringthe day. At night, he sailed toward the American coast. As aresult, the ship zigzagged north and landed off the coast of LongIsland. The slaves, who had fought for their liberty at a timewhen the American Revolution was still a vivid memory, werepromptly arrested, charged with murder, and held to determinewhether they were free men or cargo to be handed over. Spain,the American officer who captured the Spanish ship, and theresidents of Long Island who first helped the Africans get toshore, all later claimed the slaves as property.

The federal District Court held that the Africans were freeand that they had been kidnapped in violation of Spain's ownlaws.1 The Circuit Court affirmed. Unbeknownst to theAfricans, the United States appealed the decision to the U.S.Supreme Court in order to protect its relationship with "HerCatholic Majesty" of Spain. In the film Amistad, which recounts

t Professor of Law at the University of Miami. I attended the St. John'sconference on law school admissions as the Chair of the Law Professor's Division ofthe National Bar Association. However, the positions advanced herein, as well asany mistakes, are my own.

1 See United States v. The Schooner Amistad, 40 U.S. 518, 519 (1841).

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this famous story, the Africans light a bonfire and dance incelebration of their impending freedom. They had been told itwas the job of the court to say what the law is. Two federalcourts had certainly spoken.

Roger Baldwin (Matthew McConaughey), the bespectacledabolitionist lawyer had to break the news to Cinque (DjimonHounsou) that in America, it is just not that simple. The plightof the Africans reflected the conflicting legal norms betweenAmerican domestic law, which recognized and protected theinstitution of slavery, and international treaties and laws, whichcondemned the practice of abducting Africans and transportingthem across the high seas. This conflict, in turn, hinged on theconflict between economic and political interests and our nation'sprofessed commitment to equality. How could any lawyerexplain this ante-bellum American "dilemma" to the innocent,hapless Africans? Why indeed must they remain imprisonedafter the court ordered that they were "free"?

Baldwin struggled for a moment and then presented anapology; the law had "almost worked," he said. "Almost worked!"Cinque, hearing this, said to his abolitionist counsel, "What kindof a land is this where you almost mean what you say? Wherelaws almost work?"2

Grutter v. Bollinger3 was celebrated by both liberals andconservatives as a victory for affirmative action. But somevictories mask retreat. It is ironic that the new, colorblind racialsystem announced in Grutter may prove more effective incontaining the challenges posed over the past few decades bymovements for racial justice than any intransigent, overtly racistbacklash could possibly have been. 4

The case arose when the University of Michigan School ofLaw rejected Barbara Grutter, a white female with a 3.8 gradepoint average and a 161 LSAT score. She argued she was deniedadmission because race, rather than her objective qualifications,was a "predominant" factor in her non-selection. 5 She challenged

2 AMISTAD (Dreamworks Video 1997).3 539 U.S. 306 (2003).4 HOWARD WINANT, THE NEW POLITICS OF RACE: GLOBALISM, DIFFERENCE,

JUSTICE (2004).5 Grutter, 539 U.S. at 317 ("Petitioner.. . alleged that her application was

rejected because the Law School use[d] race as a 'predominant' factor, givingapplicants who belong to certain minority groups 'a significantly greater chance ofadmission than students with similar credentials from disfavored racial groups.' ")

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not only the policy at the University of Michigan's law school, butalso a long standing precedent-the 1978 case of Board ofRegents v. Bakke.6 The decision in Bakke, written by JusticePowell, famously held that while all race-conscious programswere subject to strict scrutiny and required, inter alia, acompelling justification, the need for diversity in admissionsjustified the consideration of race. 7

The long standing consensus that Powell was right wasupset when the Fifth Circuit, in the infamous Hopwood8 case,momentously set forth a revisionist interpretation-that Powell'sdecision was not the law, and the claim of "diversity" was not asufficiently compelling reason to discriminate against innocentwhites in the admissions process. Grutter is widely touted as avictory because it rejected the "heresy" of Hopwood and affirmedthat Powell's decision was the law; it affirmed a qualified right ofeven state-run law schools to consider race.

Grutter went on to place the imprimatur of the SupremeCourt on the value of having a student body that includesindividuals from different racial and ethnic groups. Race mattersand is relevant in the context of the need for a diverse studentbody. More specifically, the Grutter Court went so far as touphold the value of having a "critical mass" of black students. 9

Grutter erased the shadow of Hopwood. So the story goes, "Wewon!" Finally. Hurrah!

Despite the new life that Grutter was supposed to havebreathed into the constitutional legitimacy of race consciousnessin admissions, law schools are becoming increasinglyresegregated. There is a systemic, nationwide decline inminority enrollment that has been ongoing for the last ten

(citation omitted).6 438 U.S. 265 (1978).7 See id. at 320.8 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306

(2003). Hopwood examined the University of Texas School of Law's admissionsprogram that gave substantial racial preferences to certain classes of minoritystudents. Id. at 934. In holding this policy unconstitutional under the FourteenthAmendment, the Court noted the law school had failed to present a compellingjustification for preferring some races over others, even when the purpose wascorrecting racial imbalances in the student body. Id.

9 See Grutter, 539 U.S. at 335-36 ("The Law School's goal of attaining a criticalmass of underrepresented minority students does not transform its program into aquota.").

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years. 10 Several factors converge to create the problem. Onefactor, a constant for many years, is of course the gap betweenthe mean LSAT scores of blacks and whites. The mean score forblacks is 141.6.11 For whites, it is 152.1.12 But like race, LSATscores are in themselves a neutral fact. The new problem flowsfrom a pattern of law schools imposing increasingly higherminimum LSAT requirements. 13

I. IMPACT OF MINIMUM LSAT REQUIREMENTS

A preliminary study of fifteen New York law schoolsillustrates the trend.

2004 Official 2006 OfficialGuidei Guide ii

School 25th # / % A-A 25th # / % A-A NetLSAT LSAT Change

A-AAlbany 148 53 / 6.6% 151 36 / 4.8% -32%Brooklyn 154 77 / 5.0% 158 60 / 4.0% -22%Buffalo 152 52 /7.1% 152 46/6.2% -12%Cardozo 152 44/4.5% 157 43/4.1% -2%

10 As John Nussbaumer, professor and associate dean at the Thomas M. CooleyLaw School, has noted:

The total number of African-Americans enrolled at all ABA-approved lawschools peaked in 1994 at 9,681 students, which at that time represented7.5% of all enrolled students....

From 1994-2004 .... total law school enrollment increased to 140,376students (+8.8%) and total minority enrollment increased to 29,489students (+19.8%). But total African-American enrollment decreased from9,681 to 9,488 students (-2%), which represents just 6.8% of all enrolledstudents.

John Nussbaumer, Misuse of the Law School Admissions Test, RacialDiscrimination, and the De Facto Quota System for Restricting African-AmericanAccess to the Legal Profession, 80 ST. JOHN'S L. REV. 167, 167-68 (2006) (footnotesomitted).

11 This is based on 1999-2000 figures. SUSAN P. DALESSANDRO, LISA A.STILWELL & LYNDA M. REESE, LAW SCH. ADMISSION COUNCIL, LSAT PERFORMANCEWITH REGIONAL, GENDER, AND RACIAL/ETHNIC BREAKDOWNS: 1997-1998 THROUGH2003-2004 TESTING YEARS 13 (2005).

12 Id.13 The ABA denies accreditation to any law school with average scores below

this level; indeed, the usual requirement is average LSAT scores of at least 142. Inaddition, it tends to deny accreditation to a school that admits any students,regardless how few, with scores below 140. See infra note 14 and accompanying text.

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CUNY 145 66 / 14.3% 148 51 / 11.4% -23%Columbia 166 108 / 9.2% 167 111 / 9.0% +3%Cornell 164 32 / 5.6% 164 45 / 7.6% +41%Fordham 157 125 /8.3% 160 90/5.9% -28%Hofstra 145 75/ 8.4% 151 61 / 6.0% -19%New York 148 101/6.7% 151 94/6.1% -7%NYU 168 100 / 7.6% 167 119 / 8.8% +19%Pace 149 40 / 5.6% 151 26 / 3.4% -35%St. John's 151 60 / 6.5% 153 63 / 6.6% +5%Syracuse 148 46 / 5.9% 152 34 / 4.3% -26%Touro 144 74/11% 148 75/9.9% +1%Totals 153 1,053 / 155 954 / -9%

7.2%i ii 6.3%iv

i Data collected in Fall 2002.ii Data collected in Fall 2004.iii Total enrollment for all schools was 14,573 students.iv Total enrollment for all schools was 15,054 students.

While the study includes a limited number of law schools,given the above-mentioned gap in test scores, the trend soobviously reflected here is virtually inevitable for schools thathave similar admissions policies.

According to Professor Shepherd, there are no accredited lawschools that admit students with LSATs of less than 142.14 Thisis higher than the average score for blacks. This minimum cut-off approach represents an irrebuttable presumption thatstudents who do not have at least a 142-the majority of blackwould-be applicants-are unfit to go to law school. This isdisturbing because many students who are disqualified in thisway actually have significantly higher grades than their whitecounterparts.

14 George B. Shepherd, No African-American Lawyers Allowed: The InefficientRacism of the ABA's Accreditation of Law Schools, 53 J. LEGAL EDUC. 103, 114(2003).

None of the ABA-accredited law schools ha[ve] students with an averageLSAT score below approximately 142. The ABA denies accreditation to anylaw school with average scores below this level; indeed, the usualrequirement is average LSAT scores of at least 143, In addition, it tends todeny accreditation to a school that admits any students, regardless howfew, with scores below 140.

Id. (footnote omitted).

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According to William Kidder, "the data reveal that lawschool applicants with essentially equivalent college grades areapt to receive widely discrepant LSAT scores depending upontheir race or ethnicity." 15

Combined data from 1976 to 1979 and 1985 reveal that 26% ofAfrican Americans with 3.25+ UGPAs were denied admissionfrom every ABA law school to which they applied, compared to14% of Chicanos and 15% of Whites .... White Applicantsconsistently had higher admissions rates than AfricanAmericans among those with 3.75+ UGPAs .... 16

Ironically, the test makers themselves argue against usingthe LSAT in this manner. As the Law School AdmissionCouncil's own guidelines state, "[t]he LSAT should be used asonly one of several criteria for evaluation and should not be givenundue weight solely because its use is convenient" and that"[c]ut-off LSAT scores.. . are strongly discouraged" because,"[s]ignificantly, cut-off scores may have greater adverse impactupon applicants from minority groups than upon the generalapplicant population."17 Furthermore, according to Dean JohnNussbaumer, there is no "valid, reliable, and objective evidenceestablishing that these practices have a legitimate educationalpurpose."' 8 The imposition of cut-off scores represents an as yetunanchored over-reliance upon and misuse of the LSAT.

This over-reliance upon the LSAT is the proximate cause ofthe systemic decline in minority enrollment. 19 Of course thecurrent trend is merely the camel's nose in the tent. Absentaffirmative action, to have an even chance of getting into an eliteschool, such as the University of Michigan, one needs a 165 on

15 William C. Kidder, Comment, Does the LSAT Mirror or Magnify Racial andEthnic Differences in Educational Attainment?: A Study of Equally Achieving "Elite"College Students, 89 CAL. L. REV. 1055, 1084 (2001) (quoting Joseph Gannon, CollegeGrades and LSAT Scores: An Opportunity to Examine the "Real Differences" inMinority-Nonminority Performance, in TOWARDS A DIVERSIFIED LEGAL PROFESSION282 (David M. White ed., 1981)).

16 William C. Kidder, The Struggle for Access from Sweatt to Grutter: A Historyof African American, Latino, and American Indian Law School Admissions, 1950-2000, 19 HARV. BLACKLETTER L.J. 1, 26-27 (2003).

17 LAW SCH. ADMISSION COUNCIL, CAUTIONARY POLICIES CONCERNING LSATSCORES AND RELATED SERVICES (2005), available at http://www.lsacnet.org/publications/CautionaryPolicies.pdf.

18 Nussbaumer, supra note 10, at 170.19 See id.

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the LSAT. 20 As Justice Thomas noted, only 1.1% of blackstudents score at that level.21 If the current trend continues,with schools continuing to raise their numerical prerequisites,the prospect of law schools returning to the virtually lily whitepatterns of the 1960s is practically assured.

The imposition of minimum LSAT requirements nullifies thebeneficial effects of Grutter on several levels. In the aftermath ofthis great victory of Grutter, we are experiencing an incredibleduality. While Grutter trumpets the value of diversity as amatter of law, the practical reality is one in which diversity isdevalued; Grutter supports the inclusion of a "critical mass" ofblack students, but in practice, the artificial headwinds of elitiststandards are moving minority admissions increasingly in thedirection of token representation. This duality in practice flowsfrom the duality of the opinion. The problem is not that theCourt did not mean what it said when it banged its powerfulgavel in favor of diversity and racial inclusion. It is simply thatthe emancipatory significance of Grutter occurs at a sterile,abstract, and formal level. While Grutter did hold all thosethings that resonate as "victory," the question is how did theCourt get there? The rationale and the elitist norms thatanimate the opinion constitute a fertile subtext in whichinstitutional exclusion has taken root.

Gary Orfield, attempting to understand the phenomenon ofresegregation in inner city schools, attributes much of what ishappening in that context to the jurisprudence of the SupremeCourt which reversed or radically revised much of constitutionallaw in this area in a series of opinions after 1988.22 Theresegregation of the inner city schools ironically seems to beginabout the same time. He argues the two patterns are linked. Ibelieve something similar is happening here. The reasoning andnormative framework of Grutter, despite its emancipatory billing,has empowered the current resegregation pattern.

20 See Grutter v. Bollinger, 539 U.S. 306, 376 n.14 (2003) (Thomas, J.,

concurring in part and dissenting in part) (noting an LSAT score of 165 is used as abenchmark because the University of Michigan School of Law uses it as the relevantscore range for an applicant to be considered).

21 Id. at 376.22 GARY ORFIELD & CHUNGMEI LEE, THE CIVIL RIGHTS PROJECT, HARVARD

UNIVERSITY, BROWN AT 50: KING'S DREAM OR PLESSY'S NIGHTMARE? 17-19 (2004),http://www.civilrightsproject.harvard.edu/research/reseg04/brown50.pdf.

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II. LOCATING GRUTTER: UNIVERSALISM V. CONTEXT

Initially there were two models of affirmative action. 23 Theliberal wing on the Court associated affirmative action with theintegrative ideal, a remedy for continuing discriminatory barriersminorities face in our society. Thus, Justice Marshall states, "Werecognized, however, that these principles outlawing theirrelevant or pernicious use of race were inapposite to racialclassifications that provide benefits to minorities for the purposeof remedying the present effects of past racial discrimination."24

Under this approach affirmative action programs wereviewed as benign. "A Program that employs racial or ethniccriteria... calls for close examination;" when a programemploying a benign racial classification is adopted by anadministrative agency at the explicit direction of Congress, weare "bound to approach our task with appropriatedeference .". ."25 Within the "benign discrimination" model thecontext of the historical experience of blacks as a group trumpedthe formalism of equal protection methodology, which sinceKorematsu required as a rule that all racial classifications besubjected strict scrutiny. 26 Thus, under this approachaffirmative action was reviewed under a deferential standard.

Against this view of affirmative action as "benign" was acolorblind approach enthroning the individual, not the group, asthe proper unit of inquiry.

[I]t is the individual who is entitled to judicial protectionagainst classifications based upon his racial or ethnicbackground... rather than the individual only because of hismembership in a particular group .... Political judgmentsregarding the necessity for the particular classification may beweighed in the constitutional balance .... When they touchupon an individual's race or ethnic background, [they must be]precisely tailored to serve a compelling governmental interest. 27

Under this colorblind framework all racial classifications weresubject to strict scrutiny. "When a classification denies an

23 See D. Marvin Jones, No Time for Trumpets: Title WI, Equality, and the Finde Siecle, 92 MICH. L. REV. 2311, 2334-44 (1994).

24 Fullilove v. Klutznick, 448 U.S. 448, 518 (1980) (Marshall, J., concurring).25 Id. at 472 (opinion of Burger, C.J.); see also Metro Broad., Inc. v. FCC, 497

U.S. 547 (1990).26 See Fullilove, 448 U.S. at 507 (Powell, J., concurring).27 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978) (citations

omitted).

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individual opportunities or benefits enjoyed by others solelybecause of his race or ethnic background, it must be regarded assuspect. '28 Constitutional litigation is the moral equivalent ofwar. And for some time the two sides, each representingradically different models or paradigms of equality, faced eachother across an imaginary no-man's land of constitutionalindeterminacy and the inability of the court to muster a stablemajority for either view.

When the Court first considered race in Bakke, it did not reacha majority opinion, leaving the issue of scrutiny undecided. Inthat case, four justices analyzed the constitutionality of theprogram applying intermediate scrutiny, while Justice Powell,writing only for himself, advocated using strict scrutiny. Thesame type of split occurred in 1980 when the Court consideredthe constitutionality of a program to reserve federal publicworks funds for minority-owned businesses in Fullilove v.Klutznick; three Justices applied strict scrutiny while threeopted for intermediate scrutiny. For several more years, theCourt wavered on the proper level of scrutiny. 29

In the context of contracting affirmative action, voluntaryaffirmative action was blessed by the deferential Fulliloveframework, while in the context of public employmentdiscrimination law under Washington v. Davis, 30 and Wygant v.Jackson Board of Education,31 a strict scrutiny approachprevailed. Voting rights were governed by yet anotherstandard.

32

In 1988, however, the two theories essentially collapsed intoone. Thus in Croson, in the context of a minority set-asideordinance, the Court rejected the deference of Fullilove andapplied strict scrutiny with fatal effect. "'There is only oneEqual Protection Clause. It requires every State to governimpartially. It does not direct the courts to apply one standard ofreview in some cases and a different standard in other cases.' "33

28 Id. at 305.29 Soraya Fata & Amy Schumacher, Current Event, Grutter v. Bollinger, 123 S.

Ct. 2325 (2003), 11 AM. U. J. GENDER SOC. POL'Y & L. 1215 (2003).30 426 U.S. 229 (1976).31 476 U.S. 267 (1986).32 United Jewish Org, Inc. v. Carey, 430 U.S. 144 (1977).33 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 515 n.5 (Stevens, J.,

concurring) (quoting Craig v. Boren, 429 U.S. 190, 211-12 (1976) (Stevens, J.,concurring)).

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Under the strict scrutiny approach all racial classifications mustbe strictly justified by a compelling reason and even then willpass muster only if the program is "narrowly tailored. '3 4 Inessence the court replaced an ad hoc, checkerboard pattern ofdecision-making with a categorical, one size fits all approach torace. Strict scrutiny became a requirement in all cases of racialclassification under the equal protection clause.35 Thisheightened scrutiny was anchored by the principle ofcolorblindness as a universal norm. "Classifications based onrace carry a danger of stigmatic harm. Unless they are strictlyreserved for remedial settings, they may in fact promote notionsof racial inferiority and lead to a politics of racial hostility."36

The persistent theme in the Court's jurisprudence is that raceconsciousness is invidious per se. "[D]istinctions betweencitizens solely because of their ancestry are by their very natureodious."37 Implicitly, by applying strict scrutiny, the Courtequated affirmative action with the erstwhile segregation ofblacks. 3 In one case the Court hyperbolically equatedaffirmative action with "apartheid."

A reapportionment plan that includes in one district individualswho belong to the same race, but who are otherwise widelyseparated by geographical and political boundaries, and whomay have little in common with one another but the color oftheir skin, bears an uncomfortable resemblance to politicalapartheid.39

This equation of affirmative action with discrimination is in turnassociated with what one writer calls a "narrative ofimposition."40 While the earlier model associated affirmative

34 Id. at 507.35 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); see also Miller v.

Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993).36 Croson, 488 U.S. at 493.37 Adarand, 515 U.S. at 21538 See id. at 245 (Stevens, J., dissenting) ("[The Court] would equate a law that

made black citizens ineligible for military service with a program aimed atrecruiting black soldiers.").

39 Shaw, 509 U.S. at 648.40 As Richard Delgado and Jean Stefancic have written:We march, link arms, and sing with the newcomers, identifying with theirstruggle. At some point, however, reaction sets in. We decide the group hasgone far enough. At first, justice seemed to be on their side. But now we seethem as imposing, taking the offensive, asking for concessions they do notdeserve. Now they are the aggressors, and we the victims.

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action with the history and lived experience of blacks, thecolorblind model posits that this so called remedy works at theexpense of "innocent people."4' This jurisprudence ofcolorblindness, overrunning the terrain of equal protection muchlike the frogs of Egypt, covers subject matter areas ranging fromminority contractors to voting rights.42

Grutter is entirely consistent with this approach. Thedifferences between the Grutter and Croson-Shaw outcomesresult from interest-convergence. 43 The universalism that allracial classifications are inherently suspect remains intact. InGrutter, the Court simply says that diversity is a compellingreason per se. No record of prior discrimination is necessary.The interest, which converges with formal equality, is that ofacademic freedom. It is this, the sphere of decision-making andthe need for deference in here, which provides the foundation forthe Grutter approach.

But I say all this to say that Grutter is in my view simply anextension of the Croson approach. Many seem to make a facilemove of associating diversity with the integrative ideal: part ofthe solution as a tool for inclusion. On the other hand, most inthe civil rights community recognize Croson as the antithesis ofthe integrative deal, part of the problem. Croson is rightly seenthis way: it rationalizes institutional inequality with slogans ofcolorblindness. But in my view neither Grutter nor its animatingnorm of diversity are part of the solution, they are each part ofthe problem. This is true because there is no real differencebetween the principles, which underlie both Grutter and Croson.Those who wish to use Grutter as a support for any emancipatoryprogram will soon confront the fact that at the end of the dayGrutter and Croson are two branches of the same tree. If I am

We decide the group is asking for "special" status. We find their demandsexcessive, tiresome, or frightening.

Richard Delgado & Jean Stefancic, Imposition, 35 WM. & MARY L. REV. 1025, 1026(1994).

41 See Grutter v. Bollinger, 539 U.S. 306, 324 (2003) ("[S]uch measures wouldrisk placing unnecessary burdens on innocent third parties'who bear noresponsibility for whatever harm the beneficiaries of the special admissions programare thought to have suffered.'" (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S.265, 310 (1978)).

42 See Miller v. Johnson, 515 U.S. 900 (1995); Shaw, 509 U.S. 630.43 See generally DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF

EDUCATION AND THE UNFULFILLED HOPES OF RACIAL REFORM (2005).

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right, what kind of fruit is the Grutter approach likely to bear?44

III. MERIT V. MINORITY STUDENTS AS INDIVIDUALS

Grutter affirms diversity while it also affirms thequantitative measures that inevitably privilege members ofsocial elites, the overwhelming majority of whom are white. Thecurrent practice, which makes these quantitative measures all-controlling, threatens to return us to 1960's levels of segregation.If current trends continue, blacks may once again comprise only3.5% of various law school populations. 45 Implicit in Grutter wasthe premise that we need a critical mass of black studentsbecause they bring perspectives which cannot be duplicated, in aracially homogenous environment. The only conclusion to bedrawn as we move in the direction of historic levels of de factosegregation is that blacks are academically inferior as a group.This message devalues black students and devalues diversity.Thus, Grutter upholds diversity in the abstract, but by upholdinga "testocracy,"46 which is discriminatory, it plants the seeds of theresegregation we are seeing.

On the one hand, we have a system based on individualmerit, yet under the current quantitative approach, minorityapplicants are effectively treated as a number. To be anindividual is to be more than a number. The paradox of a meritsystem based on test scores is that minorities are unable to showtheir true worth as individuals. They are invisible asindividuals. Effectively, given their average scores, blacks areincreasingly seen as members of an inferior group. They arestigmatized by the testing practices of most law schools.

44 A bad tree cannot bring forth good fruit; neither can a good tree bring forthbad fruit. Matthew 7:16-18 (New American).

45 For example in 1969, black students made up only 3.5% of the entireUniversity of Michigan student body. See John Friedl, Making a Compelling Case forDiversity in College Admissions, 61 U. PITT. L. REV. 1, 7 (1999).

46 I borrow the term from Professor Lani Guinier. See Susan Sturm & LaniGuinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL.L. REV. 953, 968 (1996). 'We argue that the 'meritocracy' is neither fair nordemocratic, neither genuinely predictive nor functionally meritocratic.... Instead, a'testocracy' masquerades as a meritocracy. By testocracy we refer to test-centeredefforts to score applicants, rank them comparatively, and then predict their futureperformance." Id.

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IV. DIVERSITY V. DISCRIMINATION

The most important dualism we are experiencing is that onthe one hand, Grutter is egalitarian, while on the other, it iscolorblind. Grutter envisions diversity as a public norm, but thequestion of how to implement it as a private responsibility.Grutter supports diversity but on the premise that race is a proxyfor ethnicity or culture. By having significant numbers ofminorities, this creates a stimulating academic environment.Despite this alchemy of transmuting race into culture, race isstill a permissible consideration only when it is considered on acase-by-case basis along with other factors such as geography,disadvantage, etc.

Under the framework of Grutter, compensatory justice is nota permissible basis for preferring minorities. Such a preference,in Grutter's terms, victimizes innocent whites. As such, Grutteroperates as a shift of focus. First, doctrinally, we do not look atracism or discrimination because it is irrelevant to thejustification for inclusion.47 But more importantly, Grutter shiftsthe focus by presenting a decision premised on discourse ofcolorblindness as some kind of victory. Having created anillusory linkage between colorblindness and inclusion, minoritieshave embraced diversity as part of a vocabulary of emancipation.Diversity as a norm is received as a kind of big tent under whichboth conservatives and liberals, as well as minority advocatesand advocates of merit, could meet and find consensus oninclusion. But Grutter privatizes the project of inclusion anddivorces all discussion of minorities from any reference to historyor the current social context of continuing patterns ofdiscrimination. This freewheeling decontextualization has laidthe groundwork perfectly for the current crises.

At a theoretical level, the problem with formal equality andits alter-ego, color blindness, is that it is concerned only withprocess. It is a framework of equality of opportunity only. Thespectre only hinted at by the current statistics is the spectre ofracial caste. The meaning of resegregation of American lawschools is that blacks will not only lack a means of legaleducation, but will lack an important avenue of social mobility aswell. By affirming an ahistorical, individualistic, and socially

47 See Derrick Bell, Diversity's Distractions, 103 COLUM. L. REV. 1622, 1625-26(2003).

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decontextualized colorblindness, the Grutter Court embraces anarrow vision of equality which has no terms for, and no way toconceptualize, the problem of racial caste. The anti-caste concernis simply beyond the horizon of the Court's equal protectionmethodology.

But the key fallacy involved in the story of Grutter as avictory is the notion that in the private sphere of academia, thereis a clear consensus rejecting the racism of black inferiority. Theidea is that once law schools were free to consider race, theenlightened liberal culture of academia would continue toembrace minorities. My hypothesis is that stereotypical thinkingis still quite prevalent. 48 The stereotype that blacks areintellectually inferior was the rationalization of choice for the eraof segregation. While a majority of law professors and deansclearly favor racial inclusion in the abstract, I doubt that thispreference will survive fierce competition for elite status amonglaw schools.

Elitism and racism are not distinct. Elite standards areintertwined with stereotyped rationalizations of racialdisparities. 49 Imagine a dean who says he simply wants to

48 See generally D. MARVIN JONES, RACE, SEX, AND SUSPICION: THE MYTH OF

THE BLACK MALE 8 (2005) (stating that although "stereotypes, originating inunconscious racism, become the evil from which the black male must be shielded,"the purpose of the book is not "to defend the black male," but "to deconstruct him").

"Social science research suggests that stereotypes serve as powerful heuristics,supplying explanations for events even when evidence supporting nonstereotypicalexplanations exists, and leading us to interpret situations and actions differentlywhen the race of the actors varies." T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 (1991) (citations omitted); see alsoJennifer L. Eberhardt & R. Richard Banks, Letter to the Editor, Rutgers, Race andReality, N.Y. TIMES, Mar. 11, 1995, at 23 (discussing political conservatives' andliberals' prevailing assumptions of African Americans' inferiority); Brent Staples,Editorial, The Presumption of Stupidity, N.Y. TIMES, Mar. 5, 1995, at 14 (discussingassumptions about African Americans that exist independently of affirmativeaction).

49 In the first instance, the "objectivity" of the standard is non-existent. Thestandards are chosen from a perspective of privileged whites based on the qualitiesthat they feel are important. To some extent, the standards chosen are those thatconfirm their own class and race experiences as the norm. See Sturm & Guinier,supra note 46, at 1034-35 (explaining that there is a "preoccupation with the falsepromise of quantitative measurement" in the "selection, hiring and promotionprocess[es]").

[C]onventional selection methods advantage candidates from higher socio-economic backgrounds and disproportionately screen out women and peopleof color, as well as those in lower-income brackets. When combined withother unstructured screening practices, such as personal connections and

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position his law school. But s/he witnesses this pattern ofdwindling minority enrollments. How does s/he rationalize it? Ifblack students are increasingly not getting in, the answer mustincreasingly be that they were not qualified. So long as asubstantial number of blacks do get in, the racial implications ofeven disproportionate exclusion of minorities is ambiguous.However, as minorities increasingly dwindle toward tokennumbers, the sheer systematic nature of their exclusion willobjectively signify group unsuitability.50 Either deans mustbegin questioning and jettisoning discriminatory standards orrisk constructively saying that the stereotypes of black inferiorityare somewhat true. Of course the rationale explaining thepaucity of minorities is normally couched in terms of educationaldisadvantage, but at the point of zero, or its functionalequivalent, the explanation becomes irrelevant. Objectively, lawschools are both buying into and sending the message that blacksare, as a class, and as a rule, not fit to be in law school. Thepractice of minimum LSAT scores and its underlying ideology ofmerit inevitably draw on and perpetuate the historic narrative ofblack inferiority.

These racial politics find synergy with the escalating attackson affirmative action. In his closing remarks to the Court inBrown v. Board of Education,51 Thurgood Marshall framed theissue as whether '"Negroes are inferior to all other humanbeings.' "52 The issue today is the same as the issue in Brown.

alumni preferences, standardized testing creates an arbitrary barrier formany otherwise-qualified candidates.

Id. at 982; see also Daria Roithmayr, Deconstructing the Distinction Between Biasand Merit, 85 CAL. L. REV. 1449, 1491-92 (1997) (concluding, after a review of thehistory of law school admissions standards, that these standards were developed inthe context of the legal profession's explicit efforts to exclude minorities and women,and that this fact explains much of the LSAT's disproportionate impact onminorities).

My point is related but distinct: that the disparate outcomes on the test arerationalized through an unanchored hypothesis, consisting of a prior assumptionthat the fault is with blacks and not with the test. The hypothesis is not entirelyunanchored, however, for racial stereotypes effectively serve as the anchor.

50 This comes under the heading of "unexplainable on grounds other than race."Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

51 347 U.S. 483 (1954).52 RICHARD KLUGER, SIMPLE JUSTICE 677 (2004) (quoting Thurgood Marshall).

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V. STANDARD 21 1-AUTONOMY V. EQUAL JUSTICE

As I write, law professors I know and respect are bravelyattempting to persuade the ABA to reform its accreditationpractices: to stop its own over-reliance upon LSAT scores. 53 Todo this, many have sought to have the ABA impose a standard ofdiversity as a mandatory feature of admissions policies, as wellas a requirement of "measurable results." On the surface this isentirely consistent with Grutter.54 This is true because in the

53 See ABA SECTION OF LEGAL EDUC. & ADMISSIONS TO THE BAR, STANDARDSFOR APPROVAL OF LAW SCHOOLS [hereinafter STANDARDS FOR APPROVAL], Standard211, available at http://www.abanet.org/legaled/standards/chapter2.html.

Consistent with sound legal education policy and the Standards, a lawschool shall demonstrate, or have carried out and maintained, by concreteaction, a commitment to providing full opportunities for the study of lawand entry into the profession by qualified members of groups, notably racialand ethnic minorities, which have been victims of discrimination in variousforms. This commitment typically includes a special concern fordetermining the potential of these applicants through the admissionprocess, special recruitment efforts, and a program that assists in meetingthe unusual financial needs of many of these students, but a law school isnot obligated to apply standards for the award of financial assistancedifferent from those applied to other students.

Id.54 Professor Bernstein has argued that the Standard is unconstitutional on its

face.[Tihe ABA has just ordered law schools to . . . violate the law-and is

resorting to blackmail to achieve its end.Under these standards, any law school that seeks to maintain or acquire

ABA accreditation will be required to engage in racial preferences in hiringand admissions, regardless of any federal, state or local laws that prohibitof such policies.

Racial preferences will thus generally be necessary to comply withStandard 211-despite the fact that several states, including Californiaand Florida, ban race as a factor in law school admissions or hiring or both.

Nothing in Grutter would permit such a law school to engage in racialpreferences.

David Bernstein, Affirmative Blackmail (Feb. 16, 2006), available athttp://www.cato.org/pub-display.php?pub-id=5561.

Bernstein is clearly wrong because the statute is stated in entirely race neutralterms as the interpretation makes clear. There are two fundamental, fatal flaws inBernstein's reasoning. The first problem has to do with the dichotomy betweenidentification and selection (a critical dichotomy that Bernstein ignores). Theadmissions process may be thought of as comprising two distinct stages. In the firststage, one must identify the audience of students targeted or sought after throughthe admissions process, and recruit and motivate members of that audience to apply.This is the identification stage. In the second stage, the school now has a pool ofapplicants and must select applicants from among this pool. This is the selection

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interpretations of the standard, a means to the goal of"measurable results are all race-neutral." 55 The standard largelyreprises the strategies of race-neutrality developed in the context

stage. Grutter says that race may not be, in itself, a dispostive factor inselection. Grutter in no way limits the authority or discretion of the school torecruit those students that the University thinks would be good students. Bernsteinseems to have shot from the hip and not considered that the standard, as furtherarticulated by the interpretation, largely limits race-consciousness to theidentification or recruitment stage. This is still race neutral with respect to theactual selection decision. Because of the recruitment emphasis the standard isentirely consistent with Grutter.

The second problem is with Bernstein's use of legal language. Bernstein's falsemoral equations ignore the difference between norms or goals and the means used toachieve them. Diversity, a student body composed of people form all walks of life is agoal and one entirely consistent with equal opportunity: it is precisely the image onewould expect to see were there no discrimination. Naked racial preference is not thesame. The means used to achieve diversity would seem to be the arbiter ofconstitutionality. This is what Bernstein vitriolically overlooks.

55 The interpretation reads in pertinent part:This standard does not specify the forms of concrete actions a school musttake in order to satisfy its equal employment obligation. The satisfaction ofsuch obligation is based on the totality of its actions. Among the kinds ofactions that can demonstrate a school's commitment to providing equalopportunities for the study of law and entry into the profession by qualifiedmembers of groups that have been the victims of discrimination are thefollowing:

a. Participating in job fairs and other programs designed to bringminority students to the attention of employers.

b. Establishing procedures to review the experiences of minoritygraduates to determine whether their employers are affording equalopportunities to members of minority groups for advancement andpromotion.

c. Intensifying law school recruitment of minority applicants,particularly at colleges with substantial numbers of minority students.

d. Promoting programs to identify outstanding minority high schoolstudents and college undergraduates, and encouraging them to studylaw.

e. Supporting the activities of the Council on Legal EducationOpportunity (CLEO) and other programs that enable moredisadvantaged students to attend law school.

f. Creating a more favorable law school environment for minoritystudents by providing academic support services, supporting minoritystudent organizations, promoting contacts with minority lawyers, andhiring minority administrators.

STANDARDS FOR APPROVAL, supra note 53, Standard 211, Interpretation 211-1.

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of local governments attempting to comply with the race-neutralcontracting requirements of Croson.56 In the Croson context,local governments, unable to use goals and timetables, are oftenusing job fairs, increased recruitment, and increasing the"attractiveness" of their markets to minorities. This standard isconstitutional only to the extent that it adheres carefully to thisboundary between racial quotas and goals on the one hand andrace-neutral criteria on the other.

The bottom line though is neither the ABA nor any agencycan require a certain percentage of minorities. Requiring"measurable results" in terms of programs and job fairs need notproduce any particular percentage. Standard 211 does not reachthat point and cannot reach that point. This boundary betweenrace-conscious practices involved in identifying and recruitingqualified blacks on the one hand and race conscious results onthe other traces the dividing line between effective strategies forracial inclusion and those which are not. In my experience race-neutral approaches generally produce tokenism.57 "In order toget beyond racism, we must first take account of race. There isno other way."5 8

In the admissions process of law schools itself, Rachel Moranvividly notes how such race-neutral practices failed miserably toproduce meaningful percentages of minorities at Berkeley. If onescrapes away the rhetorical patina of "results" and strips thestandard down to the actual means endorsed, there is nodifference, as narrowly constrained by Grutter, between thisstandard and the failed race-neutral practices of the past. It isperhaps hoped that somehow the whole might be greater thanthe sum of its parts: that authority of the ABA as the accrediting

56 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).57 See William C. Kidder, Silence, Segregation, and Student Activism at Boalt

Hall, 91 CAL. L. REV. 1167 (2003) (reviewing ANDREA GUERRERO, SILENCE AT BOALTHALL: THE DISMANTLING OF AFFIRMATIVE ACTION (2002)).

Yet, in the six years since affirmative action was banned (1997-2002), thesegroups comprised only 11.3% of first-year enrollments at Boalt. Bycontrast, African Americans, Latinas/os, and American Indians comprised23.4% of total first-year Boalt enrollments in the most recent years withaffirmative action (1993-1996), meaning that Proposition 209 and the U.C.Regents' ban had the overall effect of slashing enrollments for these groupsby more than half at the University of California's flagship law school.

Id. at 1173.58 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 406 (1978) (Blackmun, J.,

concurring).

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body together with the rhetoric of official exhortation willproduce something more here than the race-neutral meansemployed would suggest. But this is an unanchored hope. To theextent that the pool of minorities continues to shrink because ofescalating LSAT minimum scores, the LSAT minimum scorebecomes the sole arbiter of the universe of minority students whogain admission. While appeals to diversity can create enhancedcompetition for this shrinking pool it has no effect on the size ofthe pool or the trend toward shrinking which is taking place.

The problem underlying the irony of a case that extolsdiversity as a goal but limits the means of achieving it to raceneutral standards is the embedded dichotomy betweeneducational autonomy and equal justice. A core normativepremise of Grutter is the autonomy of educational institutions tochoose the kinds of students who will enrich the learning process.Grutter is not animated by any concern for blacks, simply thedesire to create a space of freedom or liberty for educators todevelop their pedagogical values through the admissions process.Implicit here is the notion that educational institutions have noobligation to address issues of social or inequality. Grutter isdeaf, dumb, and blind to those concerns. 59

Those who advocated Standard 211, in my view, did so out ofa just concern about increasing racial exclusivity and ultimatelyabout racial caste. But Grutter, as a creature of educationalautonomy, is not conceivably a viable platform to base anyprogram of racial justice. Grutter is not within the paradigm ofequal justice but within a much older paradigm of laissez-faire.Grutter is the new Lochner. Grutter will continue to constrainmeans to race-neutral means, to uphold an LSAT testocracy,which is crushing minority hopes, to insulate the academy fromany serious critique of the narrative of black inferiority, which isincreasingly becoming more dense and more salient within theadmissions practices of law schools who have under Grutterrenewed freedom to raise LSAT scores as high as they like nomatter the adverse impact. If tokensism arises from this it is notirony, it is not inconsistent; it is a precise reflection of the

59 The University is free to define diversity in such a way that diversityembraces students who in their backgrounds reflect a concern for issues of socialinequality. But, Grutter does not associate itself with any substantive social justicenorms and Universities, in my view, are left free-laissez-fair above all-to ignorethem.

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subordination of equality, as social justice, to the norm ofautonomy (liberty). The normative hierarchy of Grutter is indirect conflict with minority social goals.

VI. RACIAL CLIMATE

The increasing over-reliance upon the LSAT does not occurin a vacuum. In 1995, the Regents of the University of Californiaabolished the use of racial, ethnic, and gender preferences inadmissions. 60 The following year, the state's voters cemented theRegents' decision by constitutionalizing the ban on preferences. 61

In November 1998, Washington voters passed Initiative 200, aballot initiative with wording identical to Proposition 209.62 InNovember 1999, Governor Jeb Bush adopted his "One Florida"plan, by executive order. Under this plan, Florida discontinuedrace-conscious affirmative action in the public university system,beginning in 2000 at the undergraduate level, and in 2001 at thegraduate and professional levels. 63 At the time of this writing,anti-affirmative action groups have succeeded in placing on theballot before Michigan voters a measure that would dismantlethe gains of recent years by banning all race- and sex-consciousprograms throughout state employment, contracting, andeducation. "A major object of the effort is to eliminateaffirmative action admissions at the University ofMichigan ... "64

There is startling lacunae separating the discussion of theover-reliance on the LSAT and the attacks on affirmative action.

60 See William Claiborne, California Ban on Affirmative Action Cleared; State'sVoter Initiative Goes Into Effect Today, WASH. POST, Aug. 28, 1997, at A01.

61 See id.62 See Steven A. Holmes, Victorious Preference Foes Look for New Battlefields,

N.Y. TIMES, Nov. 10, 1998, at A25.Proposition 209 was adopted by the voters of California as a ballot

initiative in the November 5, 1996 general election, by a margin of 54 to 46percent of the nearly 9 million votes cast. Formally entitled the "CaliforniaCivil Rights Initiative," Proposition 209 amends the California Constitutionso that it generally prohibits race- and gender-based affirmative action byCalifornia state agencies.

Girardeau A. Spann, Proposition 209, 47 DUKE L.J. 187, 195-96 (1997) (footnotesomitted).

63 See Anita Kumar, UF's Grad Schools Lag in Minorities, ST. PETERSBURG

TIMES (Fla.), July 5, 2003, at lB.64 Miranda Massie, Civil Rights Are in Peril; Court of Appeals Lets Regressive

Amendment Go On 2006 Ballot, DETROIT FREE PRESS, Nov. 22, 2005, at 13.

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Both have the same effect. The increasing acceptance by votersof propositions banning affirmative action may represent awidening, deepening embrace of the idea that blacks are loweringstandards and standing in the way of more qualified whiteapplicants. It seems more than coincidental that the diminishingblack enrollments are occurring in tandem with these referenda.I write, not to prove that the current over-reliance is based onstereotypes, but to make a plea that the current pattern ofresegregation be seen in a larger context-one in whichAmericans in the post-civil rights era are questioning, retreatingfrom, or rejecting the assumptions and premises of the "secondreconstruction."

VII. SOLUTIONS: TOWARD A NEW STRATEGY FOR RACIAL JUSTICE:LEGISLATIVE REFORM

So, where do we go from here? First, we need some friends. Weneed some new allies. The entire civil-rights struggle needs anew interpretation, a broader interpretation. We need to lookat this civil-rights thing from another angle-from the inside aswell as from the outside .... That old interpretation excludedus. It kept us out. So, we're giving a new interpretation to thecivil-rights struggle, an interpretation that will enable us tocome into it, take part in it .... 65

As a tactical matter, proponents have accepted a paradigm thatmisdirects attention and energy into trench warfare, ratherthan into pursuing a progressive agenda. By reactingdefensively to the current onslaught, they have forecloseddiscussion of new, innovative strategies for racial and genderjustice .... 66

Grutter is not our friend. It reflects our new captivity within theparadigm of formal equality as it intersects and links up with anequally imprisoning ideology of merit. In its doubleness, itsappearance as a harbinger of inclusion, it is seductive to try towork within its framework. We must not.

I think that what we need to do is try to understand howAfrican Americans faced with a similar political-legal dilemmaaddressed the problem. I have said in many ways the current

65 Malcolm X, The Ballot or the Bullet (Apr. 3, 1964), available athttp://www.historicaldocuments.com/BallotortheBulletMalcolmX.htm.

66 Sturm & Guinier, supra note 46, at 955.

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problem of resegregation of the nation's law schools isreminiscent of the historical moment of Brown. CharlesHamilton Houston, the architect in Brown, utilized a strategy,which I refer to as co-opting the dominant paradigm. Heaccepted the segregationist law as it was; he initially made noeffort to relitigate Plessy v. Ferguson.67 (Grutter may well be thenew Plessy.) He then went on to use the law as it was to differentends than that for which it had been constructed. As I write, thisdebate is going on in the law reviews about these practices.Simultaneously, law professors I know and respect are bravelyattempting to persuade the ABA to reform its accreditationpractices: to stop its own over-reliance upon LSAT scores. To dothis, many have sought to have the ABA impose a standard ofdiversity as a mandatory feature of admissions policies, as wellas a requirement of "measurable results." This would, in myview, be only superficially consistent with Grutter, because itsmacks of either redistributive justice or affirmative action goals,which will be read as a "quota." This, in my view, is to argue outof a just concern about racial caste against the dominantparadigm. Advocating diversity will not work, because even ifone sees it as an anti-racist norm, it is still, at best, tenuouslyand precariously situated on the agenda of legal education.Diversity is a currency that is increasingly losing its purchasingpower in the face of increasing competition, as the Americanpublic shifts away from all notions of "affirmative action."

Let us speak no more of this diversity. And let us stopattempting to close the barn door lest the horse of affirmativeaction is stolen. The significance of Grutter is that the horse isalready gone.68 But we need not mourn its loss. 69 Affirmative

67 163 U.S. 537 (1895).68 Affirmative action still exists as a remedy for identified, proven

discrimination. See United States v. Paradise, 480 U.S. 149, 168-70 (1987); Local 28of Sheet Metal Workers Int'l Ass'n. v. EEOC, 478 U.S. 421, 445 (1986).

However, voluntary affirmative action, as that term has always beenunderstood, is pass6. Affirmative action has traditionally meant one of two things. Inits broadest meaning, it was understood as a floor or minimum level beyond whichtraditionally unrepresented minorities would not sink, and to conservatives, a quota.More narrowly, it was understood as a notion that race was always relevant toadmissions or hiring where blacks were concerned as a marker for disadvantage orin Bakke's terms "unique perspectives." In any case, it was understood to authorize abroad, systemic use of race. I do not think either of those readings survive Grutter.

Grutter stands for two fundamental constitutional values. One is the right of theindividual to be considered as an individual not merely a member of a group. The

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second is the "freedom of the university to choose" a student body which includesstudents of diverse backgrounds. What Grutter finds in the margins of its colorblindapproach is a liberal interpretation to what individualized treatment mayencompass.

Grutter expressly held that the university may consider race on a case-by-casebasis. Grutter also endorsed the goal of the university in seeking a "critical mass ofblacks."

But this mantra of "critical mass" was "tricky magic." The Court upholds race-consciousness, but only as a discretionary thumb on the scale-as a metaphor toguide discretion, not as a fixed percentage or floor:

This was done, Shields testified, to ensure ... a critical mass ofunderrepresented minority students .... Shields stressed, however, thathe did not seek to admit any particular number or percentage of...minority students.

... Jeffrey Lehman, also testified .... [that he] did not quantify criticalmass in terms of numbers or percentages .... When asked about the extentto which race is considered in admissions, Lehman testified that it variesfrom one applicant to another. In some cases, according to Lehman'stestimony, an applicant's race may play no role ....

Grutter v. Bollinger, 539 U.S. 309, 318-19 (citations omitted).However, in the case the admissions director did not associate a critical mass

with any particular percentage. It was an ever present but "background"consideration. To appreciate the limits of Grutter let us ask what more a universitycould do. A spectrum of inclusive strategies appear below:

A. The state, the university, or the department mandates racial goals orminimum percentages of blacks which should be admitted to achieve a"critical mass."

B. The university decrees that to achieve "diversity" all blacks "shall" be givenpreferential treatment in the selection process on the basis of race topromote diversity.

C. The university decrees that all departments must strive for diversity andthat officials "may" consider race in the selection process on a case by casebasis to achieve diversity.

D. The university decrees that all departments must achieve measurableresults in terms of diversity and that to do so they shall affirmativelyidentify, recruit, and encourage minorities to apply.

A. is so clearly unconstitutional as to require no discussion. B. in my view would beequally unconstitutional as well. Grutter represents a structural resolution in that itmakes the individual admissions expert or team the locus of decision-making as towhat criteria to use in deciding whom they want. Moreover, it authorized thisdiscretion in the context of a process that considered race on a "case-by-case" basis.This "freedom to choose" and its inherent flexibility and sensitivity is precisely whatliberal individualism celebrates and requires. Any effort to substitute systemwideprogram for flexibility, or to impose race-consciousness across the board wouldcollide with the whole logic of Grutter.

Let's translate this into doctrinal terms. Grutter's premise is that we mustengage in a balancing test to determine the legality of voluntary affirmative action.The presumptive harm of considering race must be balanced against the goal ofachieving a diverse student body. Grutter resolves the balance in favor of diversitybut only because the program is "narrowly tailored." It is narrowly tailored becauseit is flexible. It is flexible because the court limits the program in time (it must

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action was only a wistful, doomed strategy of addressing theissue of discrimination. The issue was discrimination; it is stillthe same. While the traditional notion of affirmative action ispasse, the anti-discrimination framework is still viable. I want tosuggest a way this framework can be used in the context of thecurrent problem. Let us recall Professor Kidder's statisticalscenario. A black student with a 3.75 grade point average has nobetter chance of getting into even one law school than theaverage white student with a 3.25 average. Thus, even some ofthe most highly qualified black students will be rejected undercurrent admissions policies. As the over-reliance upon the LSATcontinues and minimum LSAT scores increase, the disparitybetween qualifications and acceptance will likely increase. Atthe same time, it is my suspicion that the practice of imposingminimum standards is not only yet to be validated, but alsoincapable of validation.

As a civil rights lawyer for over twenty years, my startingpoint is, "Where would that student go to obtain legal redress?Who is he going to call?" In a practical sense, the answer is noone. With the exception of Title VI, under all available statutess/he would have to show some intentional wrongdoing to trigger ameaningful level of judicial review. 70 Without such a showing,

sunset in twenty-five years) and because race is not the predominant factor in theselection process. Flexible in context refers to considering race on a case-by-casebasis. The decision to institutionalize a racial preference in any form in the selectionprocess is the kind of sweeping, inflexible program that would be suspect as racialpolitics. Said another way, how could any systemic or standardized consideration ofrace in the selection process (as opposed to the recruitment stage) be individualizedas Grutter commands?

C. is constitutional because it is precisely the case that Grutter addresses. D. isconstitutional as well because while race is considered for purposes of recruitmentno one is prejudiced in the selection process itself. There is no cognizable taking orharm. Of course, the only effective way to help blacks would be A. This is whatGrutter forbids.

69 1 would note that I have fought for affirmative action in the past. I

represented the NAACP in local debates with Ward Connerly. I represented theNAACP again when Governor Bush held hearings on his misleading and divisive"One Florida" plan, and have devoted much of my life to civil rights issues.

70 See Washington v. Davis, 426 U.S. 229, 230-31 (1976). As summed up by onelaw professor:

A "racially neutral" policy is not unconstitutional merely because it resultsin racial disparity that the government cannot objectively justify.Washington v. Davis seems to signal that if governmental officers areignorant of racial disparity produced by the policies that they have adopted,or even if they know but are indifferent, they do not violate the

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there would be no requirement for the offending school tovalidate the practice. Tracing the pattern of over-reliance on theLSAT to some identifiable discriminatory animus/discriminatoryintent is a practical impossibility.

The issue under Title VI is slightly different, but the doorseems, in all practicality, just as closed. Under Title VI, statesare in fact prohibited from discriminating on the basis of adverseimpact.71 In the past, students have succeeded in challengingadmissions practices that disproportionately excluded them. 72

However, in Alexander v. Sandoval,73 the Supreme Court heldthat no private right of action exists because Congress did notspecifically create one.74 Title VI's prohibition against disparateimpact is intact. Certainly, the Department of Education canpromulgate regulations against disparate impact. Some haveargued that a private party could sue to enforce regulationsprohibiting disparate impact. 75 But this is a speculative theory oflitigation 76 linked to what strategically is a circumlocutoryapproach.

Constitution so long as they did not intend to bring about such a result.David Crump, The Narrow Tailoring Issue in the Affirmative Action Cases:Reconsidering the Supreme Court's Approval in Gratz and Grutter of Race-BasedDecision-Making by Individualized Discretion, 56 FLA. L. REV. 483, 509-10 (2004)(footnote omitted); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429U.S. 252, 264-65 (1977) (holding that discriminatory intent must be proven beforethe Court will find that the Equal Protection Clause has been violated).

71 Although Title VI does not by its terms provide for disparate impact

litigation, regulations promulgated to implement the statute explicitly forbidfederally funded entities from using "criteria or methods of administration whichhave the effect of subjecting individuals to discrimination .... 29 C.F.R. § 31.3(2005).

72 See Grove City Coll. v. Bell, 465 U.S. 555, 563 (1984); Preston C. Green, III,Can Title VI Prevent Law Schools From Adopting Admissions Practices ThatDiscriminate Against African-Americans?, 24 S.U. L. REV. 237, 247-48 (1997)(discussing disparate impact regulations and the possibility of establishinguniversity-wide discrimination under Title VI).

73 532 U.S. 275 (2001).74 See id. at 293.75 See Carolyn Magnuson, 'Disparate-Impact' Suits May Survive After High

Court Ruling on Civil Rights Act, TRIAL, July 2001, at 17, 17 (noting that "[als aresult of the decision, some lawyers say, the future of civil rights litigation may restmore on 42 U.S.C. § 1983"); see also id. at 96 (quoting Adele Kimmel of TrialLawyers for Public Justice as saying, "I don't think every door has been closed").

76 Most likely, courts would defer to administrative agencies-here theDepartment of Education-in enforcing the regulations. That is, they would likelydismiss such lawsuits. See Thomas A. Lambert, The Case Against Private DisparateImpact Suits, 34 GA. L. REV. 1155, 1186 (2000).

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What is missing is a substantive right to sue for testingabuse. My sense is that the minimum score approach is deeplyentrenched in our current academic culture. It is a recentexpression of hegemonic notions of merit interacting with asociety-wide retreat on the civil rights assumptions of the 1960s.There is a need for a statute which would provide legal redressfor the student who is qualified in terms of grades and all otherrelevant criteria, but who is disqualified by express or impliedminimum score requirements on the LSAT. We need to test thetest. We need new legislation in the form of a statute whichwould make law schools presumptively liable for thediscriminatory impact of admissions test requirements. To rebutthe presumption, law schools utilizing minimum test scorerequirements would have to validate the cut-off they wereimposing.

The legitimacy of the LSAT would not be in question. In thepast, blacks have assumed the position of someone trying toprove that there is something wrong with the test. Under theframework I propose, the burden will be on schools that misusethe test to explain why they are doing this. Of course mycolleagues tell me there is no support for such a bill in eitherhouse of Congress. This is not the issue. By merely introducinglegislation we can highlight, in hearings and in the media, howthis practice is unanchored--creating an artificial andinsurmountable barrier to the dreams of minorities, whilefacilitating a virtual shut down in the pipeline of minorityattorneys. The system will not respond to slogans like diversity.The master's tools will never dismantle the master's house. Buthistory has shown it does sometimes respond to politicalresistance. The effort at legislative reform could become a site ofeffective resistance and public education.

If we form coalitions, if we put this issue on the front burnerof our political agenda, we can win this. But unless we do this,we will, like the abolitionist lawyer in the film, have to apologizeto a generation of would-be black law students why, despite theCourt's insistence on formal equality, they cannot go to lawschool. And we would have to explain to them how the law"almost works."

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